Federal Court Rules DOMA Sec. 3 Violates Equal Protection

U.S. District Court Judge Joseph Tauro, appointed to the federal bench in 1972, ruled this afternoon in Gill v. Office of Personnel Management that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. A companion decision in Massachusetts v. U.S. Dep’t of Health and Human Services also was issued, with Tauro finding that DOMA also violates the Tenth Amendment and the Spending Clause of the Constitution.

Section 3 of DOMA defines “marriage” and “spouse” at the federal level as constituting only opposite-sex couples. It reads:

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.

The Gill case, which was filed first by Gay & Lesbian Advocates & Defenders, is unique because it challenged not the right of same-sex couples to marry, but the discrimination faced by same-sex couples who were legally married in Massachusetts but are treated differently than opposite-sex married couples by the federal government. The case points to health and retirement benefits of federal employees and their same-sex spouses or, in one case, the widow of a former federal employee. It also challenges diffential tax treatment faced by same-sex couples.

Tauro wrote a very strong equal protection opinion, finding:

This court need not address these arguments [about whether strict scrutiny should apply in this case], however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

The Massachusetts challenge, brought by state Attorney General Martha Coakley (D), adresses specific problems faced by the state of Massachusetts because of the federal prohibition on recognition of the same-sex marriages legally entered into in the state. In Judge Tauro’s decision in the Massachusetts case, he found that — in addition to equal protection principles — DOMA violated the Tenth Amendment and the Spending Clause of the U.S. Constitution. In part, he writes:

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.

The decisions appear to be a broad validation of Massachusetts and GLAD’s arguments and are certain to set up a more difficult appeal than had Judge Tauro only found one ground to strike down Section 3.

In fact, Tauro’s parting words in Gill, set up just how difficult he believes that an appeal should be:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Section 2, which purports to give states the authority to refuse to recognize same-sex marriages legally entered into in other states, is not at issue in either of the cases.

As to why the Fifth Amendment is implicated, it is how the Equal Protection Clause of the Fourteenth Amendment is applied to the federal government. Sometimes referred to as “reverse incorporation,” it is the opposite of incorporation — or application — of the Bill of Rights to the states through the Fourteenth Amendment. Incorporation was the reason why the U.S. Supreme Court found the Fourteenth Amendment to require that the Second Amendment be applied to the states in last week’s decision regarding Chicago’s gun law.

It would be very unlikely that the federal government would not appeal the ruling in this case. GLAD’s Mary Bonauto concurred on a conference call following the ruling: “I fully expect the government will appeal.” Such a move, however, is likely to subject President Obama to criticism from some quarters.

“The Speaker strongly supports today’s ruling that the Defense of Marriage Act violates the Constitutional guarantee of equal protection. We must continue to work against division and distraction in our country, and work toward the day when all American families are treated equally.”